Kansas DUI & Missouri DWI Blog

The following information is posted by Kansas DUI lawyer Jay Norton. Please return to this page periodically for new information regarding DUI & DWI laws in Kansas and Missouri.  This page displays all of Mr. Norton's submissions over the past two years.  To comment on these posts, go to http://kansas-dui.blogspot.com

Thursday, May 8, 2008
Minor in Possession (MIP) in Kansas

I missed this article from about a year ago in the Lawrence newspaper about the MIP and MIC enforcement in Lawrence. Like most cities in Johnson County and elsewhere in Kansas, Lawrence has increased their MIP or MIC enforcement over the last few years. The article discusses the costs associated with an MIP charge in Kansas and what a person can expect from the judicial system. Not all municipal courts in Kansas operate the same way that Lawrence does, but it should give you some idea of how a typical MIP case is treated.

For more information about Minor in Possession (MIP) and Minor in Consumption (MIC) tickets in Kansas, our website has some good info located here. I have also blogged about Kansas MIP cases here and here.

Thursday, May 8, 2008
The End of DUI?

Car manufacturers Nissan and Toyota are currently working on technology that could put an end to driving under the influence of alcohol. The technology can detect the presence of alcohol through a person's skin. These "transdermal alcohol sensors" in the steering wheel of a car measure the driver's alcohol content through the person's fingers. An awesome video regarding this and other technology can be seen here. I don't know what happens if the driver is wearing gloves because it is cold or how consumers are going to react when this technology fails and shuts his or her car down without reason, but I know that certain groups will be pushing to make this technology mandatory in all vehicles.

I have blogged about the technological advancements we can expect in Kansas DUI prevention and enforcement before (here). There are all sorts of inventions coming on to the market now that will allow law enforcement officers to gain information quickly, including flashlights that will take a driver's picture, make video and audio recordings and test the air around his or her mouth for alcohol without the driver knowing it. Facial and retinal scanning devices are already being used in many places.

Some are all for this use of technology and many are against it due to the loss of privacy and the propensity of this kind of sensitive equipment to fail or give a false positive. Like it or not, though, it is coming and it will effect the enforcement and litigation of DUI cases in the very near future.

Thursday, April 24, 2008
The True Cost of a DUI (Again)

There is another article about the ancillary costs of getting convicted of a DUI at MSN Money Central. You may have seen my earlier blogs here and here on this issue. Apparently, the word is getting out that a DUI is no longer a traffic ticket that a person wants to just plead to and move on. The effects of a DUI conviction will haunt you for a long time (the rest of your life under Kansas law) and will have serious financial ramifications on you for years. The numbers in the MSN article are accurate for Kansas. They estimate that, between the cost of bond, car towing, court fines and fees, alcohol treatment and raised insurance rates, the cost of a DUI is $10,000.00.

The article mentions that some attorneys charge $500.00 for a quick plea. Talk about an expensive lawyer! That "quick plea" you thought you were getting on the cheap is going to cost you thousands over the long run. The investment in the best Kansas DUI lawyer you can find may actually SAVE you money, especially when they find a way to beat the case. Also, even in those cases where there will be a diversion or conviction for a DUI, an attorney who emphasizes DUI defense in the area in which you are charged will know how to navigate the system for you to save you money in the long-run. Read the article, it is a pretty good one, and then look at our firm's information about How to Choose the Best Kansas DUI Lawyer.

Thursday, April 24, 2008
Big Brother Comes to KC

The city council of Kansas City, Missouri has entered into a contract with an Arizona company to have red light cameras installed at 12 intersections in KCMO. You can bet that when the money from those starts rolling in they will install more. The story in the Kansas City Star is here.

I would expect that other cities in both Missouri and Kansas will follow suit, especially once those cities see the profit margins on KC's cameras. Even though these cameras are intrusive, fail to prove who is the true perpetrator of the red light violation, are capable of being wrong and cannot be cross-examined, I expect that the general populace will just shrug and start paying the fines. We are growing more and more comfortable with big government, and growing more and more comfortable sacrificing constitutional principles and individual rights at the altar of a false sense of "safety" that we have all but given up on a democracy by and for the people in favor of a top-down government to keep us all in line. At least the cameras will free up some police officers to go around and enforce the new smoking ban in Kansas City! Maybe now they will also have then manpower to actually send an officer to your house to make a report when you've been the victim of a property crime (they currently don't do that in KCMO).

Monday, March 24, 2008
How Much Will My DUI Cost?

Here is a somewhat funny video addressing what a DUI will cost , at least as far as the state of Texas goes. The numbers aren't far off from Kansas, though, if you lose. I blogged about this before recently. Suffice it to say, a Kansas DUI conviction is a very expensive thing.

Monday, March 17, 2008
4th Time DUI = Prison

A bill being discussed this week in the Kansas legislature would mandate that persons convicted of a 4th time DUI in Kansas be sent to a special DUI prison for 18 MONTHS! If they are good they might be able to get out after 12 months. Holy moly. The text of the bill is here if you are a Kansas DUI nerd like me: http://www.kslegislature.org/bills/2008/2879.pdf . As I mention often, the Kansas DUI laws change every single legislative session, because DUI is a political football that is easy for the legislature to kick around. This is crazy, though. Currently, the minimum sentence is 90 days in custody. This bill would remove all discretion from sentencing courts. Many times these cases are not filed for a year or more from the date of the offense. The statute of limitations is 5 years. During the time between the offense and the case getting filed many people enter & complete treatment or otherwise make the changes in their livese to obtain and maintain sobriety. This law would remove any incentive for a person to do so, since they will just get shipped off to the DUI gulag for 18 months regardless. There are many people who plead to DUI charges back in the 1960's, 1970's, or 1980's. It may have been 20 years since they were accused of a Kansas DUI, but if they get convicted of a fourth, they will get 18 months. That kind of a sentence will usually result in a loss of career, loss of family and major loss of finances. Of course, this goes along with the loss of driving privileges (usually for 10 years). Making sure a person is jobless, divorced, homeless and without hope is no recipe for recovery. Let's hope this doesn't pass. The amount of resources spent on DUI enforcement is already astronomical. Building, staffing, and operating a DUI prison would be an extreme waste of taxpayer money. The current law allows a judge to lock someone up for 12 months if they deserve it. Removing the possibility and hope of something less for those circumstances that deserve it is simply myopic. Again, my fingers are crossed against this one.

Wednesday, March 12, 2008
We See What We Want to See

This disturbing story from Tampa , Florida is typical of the hysteria surrounding DUI cases these days. A man was driving himself to the walk-in doctor's clinic because he was so ill with pneumonia. On the way there he was stopped by law enforcement. They apparently assumed he was drunk, even though he explained that he was sick and needed medical attention. So, they gave him a breath test and he blew .000. That is, he had no alcohol in his system at all. Did they release him to get to the doctor with their profound apologies? No, he was arrested anyway and booked into the county jail. He sat there until 2:00 a.m. when his family could finally bond him out. He went immediately to the hospital, where he remains today very sick with pneumonia. The story doesn't say whether charges will be dropped or the case will be prosecuted.

This case reminds me of another case I blogged about before in which a man was pulled over for striking a curb. He could not successfully complete the so-called "field sobriety tests" becuase his body was ravaged from 20 years in the construction industry and was arrested. He blew a .000. So, law enforcement assumed he must be under the influence of drugs. His blood was drawn and it came back negative for any drugs. Yet, the prosecutor insisted on prosecuting the case on the faith that there must have been some kind of intoxication going on. Of course, the guy eventually got the case dismissed, but only after he spent thousands on legal fees.

We see what we want to see. If you want to see a DUI, you will see a DUI, regardless of the reality right in front of your eyes. In the frenzy to catch drunk drivers, many people have put on the blinders and are just operating on their hunches and desires, and completely innocent people are getting swept up. Even when the tests come back negative or under the legal limit, Kansas DUI prosecutions march on. I have had these kinds of cases in my own practice on a regular basis. The foregoing 2 examples are not isolated incidents. Somehow common sense needs to be injected into the process again. Precious resources that could be used to catch real criminals are being spent on cases like these where there is no evidence. The answer, of course, is to take the money out of the DUI equation and you would see a lot less of this willful blindness to the obvious.

Wednesday, March 5, 2008
DUI Saturation Patrol March 14

The Overland Park , Kansas, Police Department is planning a DUI Saturation Patrol on Friday, March 14, 2008. I guess it is that time of year again. I am sure there will be many checklanes to follow. However, a saturation patrol means that there will be more officers out patrolling the streets between 11 p.m. and 3 a.m., and they will be pulling motorists in Overland Park over for every little reason they can think of and then sniffing them to see if they have been drinking. I have always advocated the use of saturation patrols instead of checklanes because at least the people getting pulled over have theoretically done SOMETHING wrong to justify the stop. Whereas, in checklanes 98% or so of the people stopped were not violating any laws whatsoever. I would think that saturation patrols would be more effective than checklanes, as well. We'll see. The numbers on this will be interesting. It is no coincidence that this Kansas DUI enforcement effort is being held on a Friday during the Big 12 Tournament here in Kansas City, and during the weekend that St. Patrick's Day celebrations will be underway. I will try to report back when the numbers on this are released. There is more info here.

Sunday, March 2, 2008
US Incarceration Rate is Highest Ever

According to this New York Times article, more than 1 in every 100 Americans is incarcerated in either a state prison or local jail. This is the highest rate of incarceration in US history and the highest rate of incarceration in the western world. For black men between 20 and 34, the rate of imprisonment is 1 in 10. This is pretty incredible and is consuming an enormous amount of resources. Are we safer than Canada, England, Germany, etc., which have much lower incarceration rates? I am not so sure.


Wednesday January 2, 2008
What it Really Costs to Plead Guilty to DUI

CNBC ran an article recently concerning the true financial costs of a garden-variety DUI case. $20,000.00 was the estimate. From the article:

"One drink too many puts you at risk for not only an arrest, but also for fees, fines and costs that can run you thousands of dollars. While a DUI or DWI may be a misdemeanor charge in a number of jurisdictions, it's a matter that most judges and district attorneys take very seriously. The financial toll of a conviction will play out for years to come, and in many states that can add up to $20,000 before everything is over. This includes bail, fines, legal fees, increased auto insurance premiums, loss of work income, court-ordered alcohol education programs and more.

Of course, if you get fired from your job as a result of the arrest, that dollar figure would skyrocket.

Potential expenses from a DUI -- first offense

You don't even have to get convicted to start running up expenses on a DUI charge. But if you're found guilty, a first offense could mean that last drink cost you dearly. While the amounts vary by location and specific circumstances, here are some of the expenses you may realize:

• Fines. • Court costs.
• Attorney fees. • Bail.
• Loss of job. • DUI "school."
• Temporary loss of income. • Car towing, impounding.
• Alternate transportation costs. • Car ignition interlock device.
• Periodic blood testing. • Monthly monitoring fees.
• Cost of incarceration. • Increased auto insurance premiums.

The financial impact of a DUI arrest on any one person can vary greatly depending on many factors, such as driving record, jurisdiction, blood-alcohol level, attorney fees and fines, not to mention the specific circumstances of the incident and whether there was an accident or if anyone was injured.

Our website has featured a page titled "What it Really Costs to Plead Guilty" to a Kansas DUI or Missouri DWI for a long time. The financial impacts of a DUI conviction in Kansas or Missouri are serious and burdensome. I have seen many people make the decision not to make the up front investment in obtaining quality legal representation for the DUI case with the idea that pleading guilty will be quicker and cheaper than hiring and attorney and fighting the case. This is usually a huge mistake.

There is a saying, "there is nothing more expensive than a cheap lawyer". Our law firm has been able to prevent clients from incurring massive and recurring expenses, or to greatly minimize expenses, by getting in a case early and getting to work. You get what you pay for. While our clients might not have enjoyed paying for an attorney up front, a small investment up front is better than spending $20,000.00 over several years and having a DUI conviction on your record.

Wednesday December 5, 2007
Colleges Rejecting Kids with Convictions

There is an interesting article in the Los Angeles Times about how most of the top colleges in the United States are inquiring as to whether a student has ever had contact with the law or been disciplined at their high school. Apparently, these days a DUI or other misdemeanor violation of the law can make the difference between getting into a good college or not. One of the colleges comments on how it generously does not reject applicants who were disciplined for smoking a cigarette at school.

The times have definitely changed. It used to be that people understood that part of being a kid is making mistakes and learning from them. These days, kids are expected to be perfect. Many of the schools in the Kansas City area will take disciplinary action against kids who have any scrape with the law, even if it happened over the summer when school was not in session! Schools regularly bar students from participating in school activities if they are so much as charged, much less convicted, with an offense like minor in possession (MIP). Our law firm has seen star players with scholarship opportunities kicked off of sports teams for minor offenses. Students also get kicked out of National Honor Society, prohibited from coming to school dances, or even going to watch the school's games. Now, this kind of school discipline, for things that happen off-campus, in addition to the consequences in court, can prevent kids from getting into college. Convictions have also for a long time prevented students from qualifying for many different student loan opportunities.

This latest development highlights how important every case is and how serious even the most minor offense must be taken. Unfortunately, there are harsher and harsher consequences for what, to some, may seem like minor transgressions. Our law firm fights every Kansas and Missouri MIP or DUI case to the fullest extent possible for just this reason. Fortunately, we have been able to prevent a lot of kids from suffering convictions or school discipline by quick and aggressive work on their behalves. If you or someone you know is cited for DUI, MIP, shoplifting or any other offense it is extremely important that they obtain effective representation. It could make a huge difference in what life options are available in the future.

Tuesday December 4, 2007
Help For Those Who Need It

If you have received a DUI in Kansas or DWI in Missouri you should at least consider whether the use of alcohol or other substances has become a problem in your life. Certainly, the fact that a person receives a DUI charge does not, in and of itself, mean that a person is an alcoholic or has a drinking problem. However, the occasion of an arrest and charge for a Kansas or Missouri DUI/DWI may provide a good opportunity for some self-reflection and some analysis of how you found yourself in this situation. It may be due to no fault of your own, or it very well may be that alcohol or other issues have led you to make some questionable choices and engage in risky behavior.

Our law firm has assisted an enormous number of people with getting into treatment for alcohol or drug issues. We pride ourselves on this fact and are happy to direct our clients to the appropriate resources for information, education and treatment. Even in cases in which we can successfully defend a Kansas DUI or Missouri DWI, we want to help people live healthier lives and achieve success in all of their endeavors. So, there have been plenty of cases in which we were able to have charges dismissed or which we were able to beat in the courtroom, but our clients still availed themselves of the opportunity to get informed, get evaluated and get treated so that they were better able to avoid issues related to alcohol or chemicals in the future. We refer people on a regular basis to treatment resources and we do it without judgment and without it affecting our representation of our clients. In fact, showing proof that a client has entered into and completed treatment voluntarily has been of great assistance in obtaining favorable resolutions of Kansas and Missouri DUI/DWI cases.

Here are some resources to consider:

Hazelden Treatment Centers Self-Evaluation Quiz:
http://www.alcoholscreening.org/AS/screening.aspx?CID=86&id=843426

Michigan Alcohol Screening Test:
http://www.ncadd-sfv.org/symptoms/mast_test.html

Alcohol Dependency Test by Hugh Burns, LMTF:
http://home.att.net/~r.h.burns/Articles/alcohol_dependency_test.html

Alcoholics Anonymous:
http://www.alcoholics-anonymous.org/

Certified Alcohol and Drug Counselors accepted by Johnson County District Court
(For a Kansas DUI in Johnson County or one of its municipalities, you will be required to obtain a substance abuse evaluation from one of these agencies in the event of a diversion or conviction. However, they can also see people on a voluntary basis and make recommendations for treatment, if necessary)
http://courts.jocogov.org/forms/ADSAP.pdf

SATOP – Missouri DWI required treatment program:
http://www.dmh.missouri.gov/ada/satop/index.htm

Substance Abuse Treatment Facility Locator:
http://dasis3.samhsa.gov/

Again, just because you are charged with a DUI does not mean you require treatment. Our firm makes no judgments regarding those who want treatment or who are adamantly opposed to it. These resources are merely offered for consideration and as a service to those who want to take a closer look at whether alcohol or other substances are causing them problems in life.

Friday, November 17, 2007
2 Frightening DUI Stories on the Same Day

Browsing the Kansas City Crime Scene Blog, as I do almost everyday, I saw 2 DUI stories on the same day that are all too common. The first story concerns a guy who was passed out in his car at about 4 p.m. When the officers aroused him, he was lethargic and appeared to be drunk. The officers told him to get out but he didn't so they zapped him with a taser. It turns out he was having a diabetic reaction. They arrested the guy and took him to the station where he blew .000 on the breath testing machine. He still spent time in jail and had to post a $1,000.00 bond. Not only that, they still have not dropped the charges! This, despite the obvious evidence that he is just a diabetic and was suffering from a medical condition. This happens all the time. The effects of a hypoglycemic reaction closely mimic those of intoxication, including a "fruity" odor to the breath which smells like alcohol. What is scary is that this guy is still charged, despite the evidence being that he had no alcohol in his system!

The second story concerns a disabled man who was given a DUI while rolling down the road in his scooter, which is actually a wheelchair. He has no use of his legs due to cerebral palsy so he uses the wheelchair to get around. He had a 12pack in his basket and blew a .125. So, I guess this guy is not to enjoy any beers out side of his house for fear of getting a DUI. Or, maybe he could get a DUI even in his house if he moves his wheelchair from one side of the room to the other. He is facing 3 years in prison for this offense. Recently, there have been a lot of stories about people getting DUI's on bicycles, horses, golf carts, riding lawnmowers and even a zamboni. They are kind of funny, but when you think of it they are kind of scary, too. I don't know what good giving a disabled person a DUI in his wheelchair is going to do for the community. I am not sure exactly who or what the police are protecting by arresting this guy.

Sometimes it seems that in the panic to prevent any drinking and driving, whatsoever, we have sacrificed common sense on the altar of DUI. We see Kansas DUI cases at our law firm that parrallel these two cases from time to time. The diabetic situation is quite common, actually. So, when we laugh at these cases remember we are laughing at ourselves. DUI cases in Kansas can be just as absurd and the citizens certainly don't seem to mind living in a DUI police state - until it happens to someone in their family.

Friday, October 26, 2007
Technology Wars

A 17 year old boy in California got a ticket for going 62 miles per hour in a 45 miles per hour zone. The officer clocked him with a radar gun. End of story, right? Well, it turns out that the boy's father is a retired law enforcement officer himself and he had installed a GPS tracking device that measured the boy's speed every 30 seconds and emailed dad if the boy was speeding. The retired sheriff's deputy downloaded the log from the GPS device for the time and location at which the boy was alleged to have been going 17 miles over the speed limit and lo and behold it looks like the radar gun was wrong! This article discusses this case and the fact that all over the world people are challenging radar gun readings and speeding tickets based on the GPS devices in their cars that say otherwise.

Of course, the police are sticking to their guns (pun intended) and saying that the hand-held doppler radar gun the officer was using is more accurate than the fixed satellite parked in geosynchronous orbit. I think that is highly doubtful, but the question it raises is that one of these technologies is way wrong. I see this happen in Kansas DUI cases, too. A person will blow one number on a PBT and then blow into an Intoxilyzer 30 minutes later and blow a totally different number - one not explainable by the mere passage of time. One of these technologies is clearly wrong in that situation.

This speeding ticket challenge will be an interesting case to watch. The courts of Kansas, and probably every other state, have declared that radar gun technology is reliable. Almost no one challenges a speeding ticket because a person's word against the police machine is not usually enough to cast doubt on the radar result. Technology, though, is putting power into the people's hands and I expect we will see a lot more of these technology wars in the future.

Monday, September 24, 2007
Checklanes

Jackson County, Missouri had another questionable DUI checklane over the weekend. This one involved 9 different law enforcement agencies. I don't know how many officers were involved, but I would suspect somewhere between 18 and 40. For all of the effort of the 9 agencies and multiple police officers, they arrested only 4 people for DUI. Remember, they may or may not get convictions on all 4 cases. This checklane had about a 1.3% success rate.

I missed a story about an Overland Park, Kansas DUI checklane from August. I don't have the numbers from that checklane, but I recall hearing that it had around a 2% success rate. The reporter of the story linked above was invited out to witness the checklane. There were 40 different law enforcement officers there and they arrested 11 people for DUI. The reporter describes the scene as disorganized. Having handled a lot of DUI cases in Kansas that come from checklanes, I know that not all 11 of these cases will end in a conviction.

So, again, considering that 40 officers were paid overtime to staff the Overland Park DUI checklane, there was a lot of police equipment put to use (cars, video recorders, breath test machines, PBT's, lights, flashlights, etc), jail staff was also likely involved, and not to mention the inconvenience to the 97% or more who were following the law completely, was it really worth it?

In the Kansas City, Missouri DUI checklane there were 9 different agencies paying a lot of officers overtime, again using all of the equipment necessary to run a checklane and involving other staff (and later prosecutors and court staff), all for 4 misdemeanor DUI cases. Certainly, if you sent 20 officers out with instructions to look for drunk drivers there would be more than 4 people arrested. Certainly, they would have more than a 1.3% success rate. Something smells funny here and I think it must be the money that law enforcement is receiving from MADD and NHTSA to run these things. Otherwise, what would the point be?

Wednesday, September 12, 2007
R.I.P. Richard Jewell

Admit it. You probably thought Richard Jewell was the Centennial Park assassin after the FBI declared him a key suspectand psychologists went on the air to describe how hefit the profile of a “lone bomber”. I know I fell for it. Mr. Jewell protested the multiple searches of his homeand complained that he was set upon “like piranha ona bleeding cow.” It turned out that Richard Jewell was not only innocent, but he was a genuine American hero who saved hundreds of lives. He died a few days ago.

The Innocence Project (http://www.innocenceproject.org/)reports that since 1991 there have been 207 post-conviction DNA exonerations in the United States –individuals who were wrongfully convicted basedon “eyewitness misidentification, corrupt scientists, overzealous prosecutors and inept defense counsel.” Fifteen of these people were sentenced to death.
Our system of justice presumes innocence unless guilt is proven beyond a reasonable doubt. Now you know why.

Kansas DUI cases are not immune from the same frailties that caused Richard Jewell to be wrongfully accused of being a domestic terrorist or Brandon Mayfield, a lawyer from Oregon, to be wrongfully accused and imprisoned for 3 weeks as the bomber in Madrid, Spain responsible for 191 deaths (Remember him: they supposedly found his fingerprints on the bag of detonators -oops!). Just recently I discovered that a law enforcement agency in another county was fraudulently creating the quality control documents the the Kansas Department of Health and Environment requires be turned over every month in order to maintain certification of breath testing equipment, in this case an Intoxilyzer 5000. The machine failed to demonstrate on more than one occasion that it was calibrated correctly. Instead of taking the machine out of service and getting it fixed, they just made up the numbers and allowed people to be convicted and diverted for DUI charges based on incompetent breath test results. Luckily my client was not one of those unfortunate people.

While cases of wrongful accusations and convictions may be the exception rather than the rule, it is important to remember that it can happen. In fact, it happens far too often. When dramatic mistakes like those made in the Richard Jewell case can be made in cases involving the best law enforcement agents in our country, in one of the biggest investigations ever, it is not too much of a stretch to realize that they can be made in the little Kansas DUI cases that no one ever hears about.

Thank you to San Francisco attorney Paul Burglin for the inspiration for this blog entry.
http://www.burglin.com/

Wednesday, September 5, 2007
Neighborhood Approach to DUI

One neighborhood in Colorado has taken on drunk driving using common sense. In a story reported here, a community in Bradburn, Colorado, has used suburban planning and neighborhood design to keep its residents safe and out of jail, as well as address other drawbacks to living in the suburbs. The problem that the neighborhood has solved is this: People are going to drink alcohol, and do it in groups, no matter what the law or obstacles. In the suburbs, this means someone has to drive to and from the drinking establishment/location. Thus, the driver is at risk for a DUI accusation.

To prevent its residents from needing to drive somewhere to drink and socialize, the neighborhood designed all homes to have a large front porch, close to the sidewalk, and put the garages in the back. This increases the numbers of people on their front porches hanging out. They have also eliminated any cul-de-sacs and built the neighborhood on a grid system, which increases the numbers of people passing by these front porches walking or driving. Most importantly, the neighborhood holds a party every Friday in the neighborhood park where residents can drink beer and wine while their children play. There are also a number of smaller parks and green spaces within the development where neighbors can socialize. So, each week, friends and neighbors can get together and drink and socialize without ever getting in a car.

Another extremely important element to reduce the need for driving, is that the neighborhood has obtained mixed use zoning permits which allow bars and restaurants to be built near the neighborhood. The Bradburn, Colorado neighbors have 3 bars and 15 restaurants within a short walking distance. Almost all suburban cities have strict zoning laws which keep residential areas separate from commercial areas. This forces people to drive to get to the places they want to go, including bars and restaurants. So, in this neighborhood, mixed use zoning eliminates this common suburban issue, as well as adds to the charm of the area.

The final piece of the puzzle is that the City of Denver, where ths neighborhood is located, is aggressively putting in light rail to connect the city with the suburbs. This is forward thinking for a lot of obvious reasons, including reducing the need to drive for social occasions.

I thought this neighborhood plan was interesting because it solves a lot of issues in a very easy way using good design. It encourages neighbors to know each other and to socialize, which not only makes for a nicer friendlier neighborhood, but reduces all crime. It recognizes a common human desire to drink alcohol and hang out with friends, yet discourages drinking an driving. Finally, it recognizes that the best places in America, and most of the rest of the world, have restaurants, bars, coffee shops, etc. inside or very close to residential areas. This makes for a vibrant, exciting and convenient neighborhood.

The Kansas City metro area could sure use this kind of commone sense development. We can't even get light rail built, much less taxis or other public transportation out in the 'burbs. If you live in a place like Overland Park or Leawood, Kansas, or Blue Springs, Missouri, you are going to have to drive to go out to eat or to a bar (that is why all the bars are required by law to have parking lots). If you get a Kansas DUI or Missouri DWI, you will likely lose your driving privileges and then you are really stuck in the suburbs. At least in Bradford, Colorado someone is trying to reduce these risks for suburban residents and provide a nicer neighborhood living experience.

Tuesday, August 21, 2007
Drunk Driving Deaths Rise in Kansas

Several weeks ago I blogged and questioned whether all of the continually increasing harshness of the Kansas DUI law was having any effect, whatsoever, on drinking and driving and the safety of the roads. There was a major overhaul of the Kansas DUI laws in 2001. Penalties increased, the 5 year "lookback" was jettisoned in favor of a lieftime lookback, and ignition interlock devices became mandatory. Hardly a legislative session has gone by since then without the DUI penalties being further increased and the DUI laws becoming a lot stricter. Most recently, in July 2007, the law changed to increase the penalties for those who blew over a .150, and to require the impoundment or immobilization of people's vehicles. In fact, a person accused of a DUI for the first time, who has no record of wrongdoing whatsoever, but who blows a .150 is supposed to lose his or her license to drive for one year. There are no hardship licenses, and no work privileges. This, of course, will destroy most careers, cause extreme hardship (financial, emotional, marital) and have a lot of unintended consequences (divorce, lack of child support, driving while suspended, driving without insurance). All of this for a person's very first offense.

Given the exponentially increasing harshness of the law I pondered whether Kansas society was at least getting the benefit of fewer DUI arrests and safer roadways. No surprise to me, NHTSA just released statistics which show that Kansas had one of the highest INCREASES in drunk driving fatalities both by numbers and by percentages. So, the problem is apparently getting worse? At least these numbers show it is not getting any better.

The drunk driving problem cannot be solved by harsher punishment. It is a social problem and chemical dependency problem. All of the jailings and all of the license suspending are apparently not making much of a difference. The Kansas DUI law needs another overhauling, but not to make the law stricter and harsher on people. We need sentencing laws that will actually work and make a difference in our society. As I have said before, until attitudes change in the community, and there are effective treatment and education programs, and until there is infrastructure like public transportation available, all of the harshest laws possible will not solve this issue. The number of DUI arrests and deaths continues to stay the same or go up. One definition of insanity is continuing to repeat the same behavior over and over expecting a different result. The DUI laws in Kansas are apparently less than sane. We need to rethink the approach.

Friday, August 17, 2007
Kansas & Missouri DUI Crackdown

The states of Kansas and Missouri are both undertaking an aggressive DUI crackdown campaign between now and Labor Day 2007. The Kansas campaign is funded by a grant from Kansas Department of Transportation and is titled: "Drunk Driving: Over the Limit, Under Arrest". I saw these words on a sign over I-35 on my way to work today. The Missouri campaign is titled, "You Drink & Drive: You Lose". The campaigns include a lot of advertising of the slogans, checklanes and other DUI enforcement activity.

The Kansas campaign seems fair, if you are over the legal limit you will be placed under arrest. Whether you will ultimately be convicted in court may be up in the air, but you can count on being arrested and charged in that situation. The Missouri slogan, though, is another misrepresentation of the law. There is nothing illegal about drinking and driving. It is only illegal to get drunk and drive, or to be over the legal limit while driving. There has been a great effort on behalf of some law enforcement agencies and the National Highway Transportation Administration (NHTSA) to spread misinformation to the public to convince them that any drinking before driving is illegal and "you lose". Remember the billboards from NHTSA that said "Buzzed Driving is Drunk Driving"? It is all part of the same campaign to confuse the public on this issue.

Missouri also has received a grant to place hundreds, if not thousands, of talking urinal cakes in the bathrooms of bars around Kansas City. When the urinal is used, a woman's voice attempts to convince the person using it that he should not drink and drive. It cleverly adds, "Your future is in your hands". That is pretty funny, and it might make someone who has had too many think twice about getting behind the wheel. As a taxpayer I am not sure I would have voted to spend the money that way, but it seems like a reasonable way to send a cautionary message to people who may actually be at risk. At least it is not another attempt to confuse the issue of drinking before driving with drunken driving (except it of course says, "You Drink & Drive: You Lose".

Friday, August 10, 2007
Kansas Checklanes No Better Than Missouri

Olathe conducted a checklane on July 28, 2007 and stopped a whopping 1,290 vehicles. They got 14 DUI arrests. That is about 1.1%. Another way to look at it is that they had a 98.9% failure rate. 1,276 people who weren't intoxicated were stopped. I would also estimate that about one-third of the cases will not end in a conviction once they make their way through the court system. So, the actual failure rate will be much higher. I don't often see the results of the Kansas checklanes, so it is interesting to see that these things are just as ineffective in Kansas as they are in Missouri.

Monday, July 30, 2007
Top 10 Ways To Prove You Are Not DUI

Generally, in Kansas, a DUI can be proven either of 2 ways: (1) by showing that a driver submitted a blood, breath or urine test of .08 or greater within 2 hours of driving a vehicle, or (2) that a driver was so under the influence of alcohol or drugs that he or she was unable to safely operate a motor vehicle. If there is a breath test in a DUI case, that alone can be enough for a conviction, but breath tests can be attacked many ways. If there is no breath or blood test because a driver refused to take one, or an attorney has been successful at getting it thrown out, the prosecutor must try to get a conviction by proving beyond a reasonable doubt that the driver was too intoxicated to safely drive. This is usually done by putting on evidence that the driver was not driving safely, failed field sobriety tests, had bloodshot eyes, the odor of alcohol on his breath and had slurred speech. Other factors that can aid a prosecution for a traditional type DUI are open containers in the car, admissions to drinking by a driver or other statements against the driver's interests. A lot of people put strong emphasis on the so-called field sobriety tests. However, as I have blogged about before, these can be dismantled fairly easily. It is not unusual for people to show poor balance duing the field tests, since they are designed to make people off balance. The police report will be skewed against the driver to note all of the information that might be considered incriminatein. It is important for a DUI defense attorney to point out all of things about his client that were normal and consistent with sobriety. In addition to attacking the field tests, the following are some of the top ten ways to show that a driver was not too intoxicated to be driving a vehicle, in no particular order:

1. Safe Driving: The best way to show that a person was not unsafe to drive is to show that he or she was driving safely. A lot of traffic stops after midnight in the suburbs are for equipment violations or speeding. If a vehicle has a tag light, taillight or headlight out, that has nothing to do with whether they are safe to drive a vehicle or not. There is no evidence of "bad driving" in those situations. Similarly, speeding may be considered a traffic infraction, but speeding is not considered by the National Highway Transportation Administration to be indicative of impaired driving. NHTSA lists about 20 driving behaviors that may indicate a person is under the influence of alcohol. Speeding is not one of them. So, how a person was actually driving a car is the first and best way to show that they were capable of driving safely.

2. Not Confused or Disoriented: When an officer approaches a driver he has pulled over, he is trained to make observations about the driver's appearance. A person who is intoxicated may appear to be confused and disoriented as to what is going on, where he is, what direction he is headed, etc. If the driver did not argue with the officer about the stop, and did not appear confused or disoriented, this would be consistent with sobriety.

3. Production of Driver's License/Insurance: Officers are trained to observe the way a person produces his or her driver's license and insurance. Do they have trouble locating it, extracting it, or handing it over? Do they fumble for it or drop it? Officers are trained to try to cause these issues by, first, requesting the documentation, and then asking questions to divert the person from the task. They will ask what year the car is, where the driver is coming from, where they are going or some fairly innocuous question that may make the driver stop to answer and forget what he or she is doing, or otherwise get distracted. Of course, most people are scared, nervous and anxious when stopped by police officers so fumbling with a license may be explainable. However, if a driver can find and produce requested documentation without difficulty this is proof of small muscle control, finger dexterity, presence of mind and overall sobriety.

4. Answering Questions Appropriately: Again, officers like to ask a lot of questions while the driver is still in the car because, generally, the Miranda Warning requirements do not apply at that time. They will ask where the driver is coming from, where he or she is going, how much the driver has had to drink, when and where they drank, and other general questions. How a driver answers these questions may demonstrate clear thinking and sobriety. Being slow to answer, asking the officer to repeat questions, getting confused, and changing answers will all be used against a driver in a Kansas DUI case.

5. Being Polite: Intoxicated persons may be belligerent, antagonistic, combative and profane. Whether intoxicated or not, it always pays to be polite with police officers. This does not mean that a driver has to answer questions, take field tests or otherwise do anything that is not required by law, but such invitations to give evidence against oneself can still be declined in a polite and respectful way. Saying "I would like to speak to an attorney first, please", or "I am not going to be uncooperative with you, but I will not take the balance tests", are polite ways of invoking your rights and standing up for yourself without being rude or antagonistic. No matter what the attitude of an arresting officer, a driver that remains calm and polite will be far better off when a case goes to court, both in terms of demonstrating sobriety and in terms of treatment by the court.

6. Exit Sequence: Officers are also trained to observe the way a person gets out of his or her vehicle once commanded to do so. Does the driver have difficulty using the vehicle controls, finding the door latch or opening the door? Does the driver "crawl" out of the car, lean on the door or vehicle for support, or stumble when getting out? Does the person lean against the car or use the car for support while walking where directed by the officer? If the person gets out of the car without any difficulties or balance problems, this is evidence of possession of normal faculties and sobriety.

7. Walking Around at the Scene: An officer will generally have the driver exit his or her vehicle and walk to the back of his or her car. This will be in front of the officer's car so his dashboard videocamera can capture the field tests. Sometimes the officer and driver will walk over to a sidewalk or some other appropriate surface for field testing. I like to point out that, while a person may have had trouble with the extraordinary balancing tests, he or she had no trouble with the ordinary walking around. If the driver can walk, talk and produce documentation like a normal, sober person, he or she can drive a vehicle like a normal, sober person.

8. Ability to Communicate: The "Big Three" clues you will see noted by officers in almost every single DUI case are (1) odor of alcohol about person or on breath, (2) bloodshot eyes (this has recently become "bloodshot and watery eyes"), and (3) slurred speech. At the time of being stopped and investigated, drivers are in no position to preserve any evidence regarding these three ubiquitous DUI characteristics. It is almost impossible to prove conclusively that a driver did not have the odor of alcohol or bloodshot eyes as these are subjective conclusions and usually one person's word against the other's. There are ways of dealing with both, however, but that is another topic. On the other hand, slurred speech should be apparent on a video or audio recording of the event, both of which are common in Kansas DUI cases. Often, the video will depict a driver whose speech is not slurred and who is able to communicate appropriately. This means that the driver can understand and answer the officer's questions and that the officer is able to understand the driver. If so, one of the "Big Three" may be disproven and communication skills consistent with sobriety may be demonstrated.

9. Answering Biographical Questions: Whether or not a driver decides to invoke his or her right to remain silent and not answer the officer's questions on the scene or later at the station after arrest, an arrested person is generally required to answer biographical questions about him or herself which may be necessary for an arrest report. These questions are usually about the person's address and phone numbers, where he or she works and the address and phone number of their employer, what state he of she was born in and whether the person has any scars, marks or tattoos. An intoxicated person may have trouble with all of that. A sober person generally would not. The ability to correctly and efficiently provide this biographical information is consistent with sobriety.

10. Using the Telephone: This is often overlooked, but usually an arresting officer will allow a detained person to call someone to bail him out or to arrange for a ride home. Officers in some jurisdictions are specifically trained to observe how a person uses the telephone. This includes whether the person is able to get a line out of the building, remember phone numbers, dial the phone (takes finger dexterity), and speak appropriately. The person will often have to tell their friend or family member where they are and give directions or the address to the police station. The ability to do these things may be used as proof that the person was also able to do the things necessary to operate a motor vehicle.

By showing that a driver was able to do all of the things that a person normally needs to be able to do to drive a car, and that he or she generally possessed the mental and physical abilities of a normal person, DUI cases can be successfully defended. If it was only when the driver was asked to do the unusual and extraordinary, like stand on one leg or walk a line heel to toe, that there was any difficulty, this should be no real surprise. No one has to stand on one leg or walk a line to get a driver's license.

Saturday, July 21, 2007
Top 10 Ways to Beat Field Sobriety Tests

Also known as "Roadside Gymnastics" or "Stupid Human Tricks", the so-called "Field Sobriety Tests" don't really measure whether a person is under the influence of alcohol or not. In addition to some exercises which have absolutely no relation to a person's ability to drive a car, like saying the alphabet, counting backwards, or doing a finger dexterity test, police officers will give a 9 Step Walk and Turn test and a One Leg Stand test. Law enforcement officers rely on these balance tests in making their decision about whether to arrest someone or not, but I don't find that judges or jurors place too much weight on them once some common sense is applied. These exercses are designed for failure and designed to make people off balance. So, it is not surprising when regular people have difficulties with them. No one is required to be able to stand on one leg for 30 seconds without swaying in order to get a driver's license. Here are some of the best ways to challenge the two physical "FST's", in no particular order:

1. Tests not Given or Scored According to NHTSA: The National Highway Transportation Safety Administration, commonly referred to as NHTSA, is the agency that developed the FST's. However, NHTSA says clearly in its manual that the "tests" are only valid if given and scored strictly according as prescribed by NHTSA. Usually, they aren't. Thus, using the NHTSA Manual an attorney can show that the tests are invalid as given by the officer.

2. Tests not Given or Scored According to Standard Operating Procedures of the Agency: Almost every individual police department has its own internal Standard Operating Procedures (SOP). Sometimes they are called General Orders or something else that sounds official. These are the rules laid down by the agency for the officers to follow. Often, these include orders and procedures for administering and scoring FST's. Thus, it is important to obtain a copy of the SOP. If the tests aren't given according to the SOP and the officer's training they may be thrown out or seriously discredited.

3. Failure to Inquire About Injuries or Illnessess: Obviously, a person with a bad back, bad knees, bad ankles, inner ear disorders or even allergies may have difficulty with tests of balancing or coordination. Even NHTSA says so. Yet, often, officers won't even ask whether a person has any such infirmities before they administer the exercises. Even if the officer asks, or the individual tells the officer that he or she has an issue that will make the tests difficult, they will give the tests anyway.

4. Surface Not Level: Whatever can be said about the efficacy of the FST's, common sense dictates that balancing tests are worthless if given on an improper surface. NHTSA says the tests must be given on a "dry, level, non-slippery surface". However, usually the roads are given on the side of a road. Roads are usually "crowned" which means they are higher in the middle and slope down on the shoulders. They are not often level. I have seen tests that were given on gravel, in the snow, in the middle of rainstorms, in barefeet on rocky surfaces, etc. The place where tests are given can be an issue.

5. Weather Conditions: As with the quality of the surface, the weather conditions are also a factor to be considered. The tests are almost always given outside (although the officers could give them inside back at the station). If it is windy, raining, snowing, or extremely cold the person's performance can and will be effected. Usually, you can get a good idea of the weather conditions from looking at the video. However, this issue can also require some research and getting certified weather reports to prove what the conditions were during the exercises.

6. Age and Weight: NHTSA states that the tests may not be valid for people who are over the age of 60 or more than 50 pounds overweight. If either of these conditions apply, they should be raised.

7. Failure to Demonstrate the Tests: The officers are trained to explain the instructions for the test and to demonstrate its performance. Sometimes they do not demonstrate the test, or demonstrate it incorrectly. Almost always, when demonstrating the 9 step walk and turn, the officer will demonstrate 3 or 4 steps and not all 9. The number of steps demonstrated can be important since it effects which foot you pivot on and which way you turn.

8. Failure to Videotape FST's: Most agencies have SOP's or General Orders that require that vehicle stops and field sobriety exercises be videotaped. If the officer fails to video the FST's, or the tape is lost or destroyed after an attorney has requested it, a motion to suppress the FST's can be filed. I have done so successfully now several times. The officer's failure to follow the internal procedures and orders of the agency may be enough to demonstrate bad faith and get anything that would have been on the tape thrown out.

9. FST's are Designed for Failure: The FST's can be discredited by using simple common sense. The exercises are designed for the specific purpose of making a human being off balance. We know it is easier to stand on two legs than it is to stand on one. It is easier to stand on one leg with your arms out parallel to the ground to help you balance than pinned to your side as the officer will instruct. So, it is no surprise that people sway when standing on one leg, or that they will have to put a foot down. The exercise is designed to make that happen. We know people walk with their feet shoulder width apart in an open gait as opposed to touching heel to toe on each step like the 9 ste walk and turn test requires. Each element of both physical FST's is designed to make a person unsteady and off balance. Once this is pointed out, I find people less likely to place much weight on the results of the FST's assuming that the subject didn't fall down or do something ridiculous during the exercise.

10. Shoes: The type of footwear or lack thereof can effect a person's performance on the FST's. NHTSA mandates that person's wearing shoes with a 2 inch heel should be given the opportunity to take his or her shoes off. Sometimes officers fail to provide this opportunity. If a person does take his or her shoes off, then they are doing the tests barefooted. Almost all roadsides have rocks, glass and other debris scattered across them. Walking on these surfaces in barefeet can be difficult. Also, when barefooted, people are less likely to touch heel to toe on the Walk and Turn. If the test are taken in sandals, flip-flops, dress shoes, cowboy boots, work boots, high-heels or other footwear that might make the exercises difficult, that can explain balance issues during the exercises.

Thursday, July 19, 2007
Top 10 Ways to Beat a Breath Test in Kansas

There are a whole lot of ways to get a breath test thrown out or to demonstrate that there is reasonable doubt about an alleged breath test result. Here are the Top 10, actually make it 12, not necessarily in any order of importance:

1. Observation Period: The required "Protocol" for Kansas breath tests mandates that the officer "keep the subject in (his) immediate presence and deprive the subject of alcohol for 20 minutes preceding the breath test". This is sometimes called the "observation period". The officer must generally keep an eye on the person to be tested for 20 minutes prior to the breath test to make sure he or she does not eat, drink, burp, belch, regurgitate, smoke, chew gum, etc.

2. Calibration Out of Tolerance: Each time a test is run on an Intoxilyzer machine in Kansas the machine must draw air in from a jar of solution next to the machine and test it. The air in the jar is supposed to test at a .080 to demonstrate that the machine is calibrated properly. However, Kansas allows a tolerance range of between .070 to .089 as acceptable. If the result falls outside of this range, the test is not reliable or admissible.

3. Failure to Properly give Implied Consent Advisories: Prior to every breath test, the person to be tested must be given oral and written notice of the Implied Consent Advisories. This is a list of information concerning the ramifications of refusing or failing a breath test. If the officer fails to give oral AND written notice, or if he doesn't read them in substantial compliance with the written version, the breath test is not admissible.

4. Advice Outside of the Implied Consent Advisories: If the officer gives information above and beyond what is contained in the Implied Consent Advisories, and especially if the information is false or misleading as to the ramifications of refusing or failing a breath test, the breath test may be thrown out.

5. Denial of Independent Test: Kansas law provides that after a person has submitted to the test of the officer's choice (breath, blood or urine) he or she has the right to obtain an independent test, which generally means a blood test from a doctor or hospital of the person's choosing. If the officer fails to allow the indpendent test, or somehow impedes the person from getting one, the breath test is not admissible.

6. Failure to Prove the Certification of the Machine or Operator: Both the breath test machine and the officer must be certified to perform breath tests by the Kansas Department of Health and Environment. If either one is not so certified, or the prosecution fails to prove the certifications at trial (by having the actual documents in court), the test is not admissible.

7. Failure to Test the Calibration Solution Weekly: The Kansas Department of Health and Environment requires that the soution used to check the calibration of the machine be tested two times each week to determine whether the machine is functioning properly. Sometimes the law enforcement agency fails to conduct the tests, or allows more than a calendar week to pass between the tests. If so, the test should not be admissible. The only way to know if the agency is conducting these tests is to obtain copies of the machine logbooks and a document called a "Monthly Certified Standard Report".

8. Failure to Change the Solution: The Kansas Department of Health and Environment also requires that the solution used to check the machine's calibration be changed every 10 days or 14 tests. If the agency fails to change the solution on these bases, the test should not be admissible. Again, you have to pull the records for the machine.

9. Failure to Report the Weekly Tests to the KDHE: In addition to changing the solution and running weekly tests on the machine using the external standard solution, the results of the weekly tests must be reported to the Kansas Department of Health and Environment every month on a form known as a "Monthly Certified Standard Report". Failure to comply with that requirement will may result in the test results during that period being inadmissible and/or the machine losing its certification.

10. Foreign Object in the Mouth: Officers should look inside a test subject's mouth prior to the breath test to make sure there are no foreign objects inside of it that could interfere with a breath test. The idea that a penny in the mouth will throw off the machine is an urban legend, but foreign objects like tobacco, retainers, false teeth, peircings or anything else unnatural in the mouth may make a breath test inadmissible or render it unreliable, especially if it is the type of object that can trap or retain alcohol.

11. GERD: Gastroesophageal Reflux Disease, also known as Acid Reflux, can cause a false high test on the machine. Basically, a person that suffers from GERD regularly regurgitates stomach contents into his or her esophagus and/or oral cavity. If this happens in the 20 minutes prior to the breath test it can cause an unreliable result in which a judge or jury may have reasonable doubt. Persons that suffer from this common condition should make sure that their lawyer is aware of this defense.

12. RFI: Radio Frequency Interference is radio waves coming from devices like police radios, cell phones, garage openers, etc. These radio signals can cause false high results on the Intoxilyzer. The Intoxilyzer uses RFI technology from the 1980's. This was a time before cell phones. There has been almost no clinical testing of the RFI detector on these machines given not only the ubiquity of cell phones now, but also the fact that devices that can cause RFI now operate at a much high level than back in the day. For instance, your home cordless phone probably operates at between 3 and 5 gigahertz. The Intoxilyzer RFI detector is no use at these levels.

There are literally hundreds of ways to defeat or cast doubt on a breath test. The foregoing examples are only a few of the possible ways. However, knocking a breath test out takes a lot of skill and knowledge, not only of the science behind infrared breath testing, but the rules of evidence specific to DUI cases, and the extensive body of caselawconcerning these forensic tests. This is no task for rookies or dilletantes. If you have a case involving a breath, blood or urine test you need the best, most experienced Kansas DUI lawyer you can find.

Monday, June 25, 2007
I Can't Help It, Another Failed Checklane!

I am going to try to lay off the checklanes. Frankly, it is taxpayers who should be getting outraged. But, I can't help talking about this one. The KCMO police department held a checklane last weekend. They stopped 2,541 vehicles. They got 15 DUI arrests. That is a less than .6% success rate. Remember, all 15 people are presumed innocent. Several of them probably actually are and may beat their case. So, the ultimate success rate may be lower than .6%. 2,526 innocent vehicles were detained. Drunk drivers are dangerous. However, guns kill far more people in Kansas City than drunk drivers ever will. I can't imagine the police raiding 2500 houses for guns without probable cause. Especially if these were the kind of numbers they were producing.

Friday, June 8, 2007
Big Changes to DUI Laws

Once again, the political football known as Kansas DUI Law was kicked around pretty hard by the state legislature. And, once again, the law has gotten stricter and harsher. Some of the changes include enhanced penalties for drivers who blow over a .150. If a person blows over a .150 and is convicted of a DUI, or loses his license through the administrative process, the person's license is suspended for one year on the first occurrence, followed by one year of driving with an ignition interlock. On the second occurrence it is one year of suspension followed by 2 years of ignition interlock.

The driver's license penalty has also been increased for persons who refuse a breath or blood test. On the first occurence of a refusal the person's license is suspended for one year, followed by one year of restriction to only driving a vehicle equipped with an ignition interlock device.

The legislature has also mandated now that, on a second or subsequent DUI conviction that the court shall order each vehicle owned or leased by the person to be equipped with an ignition interlock device or be impounded or immobilized for 2 years. It doesn't matter whether having your car impounded for 2 years will make you or someone else in your family lose employment, lose the ability to go to school or lose the ability to obtain medical care. It is not all bad, though, the law does say you are allowed to remove your personal possessions and property from the car before it gets taken away.

Whenever a person is subject to a restriction to an ignition interlock device the person must submit proof that he or she complied with the full term of the interlock requirement before the license can be reinstated.

I blogged earlier about the fact that the law would allow people who are suspended for DUI's to obtain a moped license. Well, that is over now.

Another interesting thing is that police can now pull over people under the age of 18 if they don't have a seatbelt on. The law has always been that everyone must have a seatbelt on. However, law enforcement was not allowed to pull someone over solely for not having a belt on. Now, for those under 18, police can do so. I do not understand how an officer is going to know that the person is under 18 without it being purely guesswork, but we'll see how that works out.

It seems that each year the legislature amends the Kansas DUI Laws to make them harsher (and more confusing). It is getting to the point where an attorney must focus on the area of the law or he or she seriously risks committing malpractice and/or giving clients bad advice. It would be interesting to look at the DUI and DUI fatality statistics in Kansas for the past 10 years. My understanding is that, even though the laws have gotten progressively harsher, especially against those under 21, that the number of DUI cases and DUI fatalities has not gone down. In other words, I am not convinced that continually increasing penalties is having any effect. Minors continue to consume alcohol, people of all ages continue to drive under the influence, they drive while suspended, and they subvert ignition interlock devices. All of the court ordered treatment won't make someone stop drinking unless he or she really wants to. I think the DUI issue needs to be addressed in other ways. Until driving drunk becomes socially unacceptable in Kansas, and until people are educated in an honest way about the dangers of drunk driving, and maybe until there are alternative means of transportation (can you even get a taxi anywhere in Kansas?), there will be DUI cases. Until then, apparently, we are going to fill the jail cells and impoundment lots with people accused of drinking and driving, many of whom are convicted solely based on a machine that is inherently flawed.


Monday, May 7, 2007
More Checkpoint Number Crunching

There were two checkpoints in KCMO this past Cinco De Mayo weekend. The first one, located at Ward Parkway and West Brush Creek Parkway (right by Pem Day School) stopped a whopping 2,200 cars and arrested a dismal 17 for DUI. The second checklane, located at 103rd and State Line, stopped 530 cars and got 5 DUI arrests. Both of these checklanes had a less than a 1% DUI arrest rate (about .8%). That means that, combined, a total of 2,708 people who were not drunk got stopped and delayed by these checkpoints. Over 99% of the drivers were not intoxicated. Wow.


Monday, March 26, 2007
Medication May Cause Alcohol Craving

It seems like there are a lot of people that are on medication these days, mostly selective serotonin reuptake inhibitors (SSRI's) for anxiety and depression. These medications include PROZAC, ZOLOFT, PAXIL and EFFEXOR. Some interesting studies have surfaced recently which suggest that these drugs cause a craving for alcohol. You can read more about this here and here. The studies are not sure exactly what it is causing this, but it is obviously and unintended and unwelcomed consequence of trying to help people deal with other mood or behavioral disorders. Some reformed alcoholics who have not consumed alcohol for years are finding themselves driven to drinking alcohol by an irrestible compulsion that kicks in shortly after beginning SSRI meds, and some people who never really drank before began guzzling massive quantities of alcohol on a daily basis after beginning the medication. Not only is the drinking alcohol a problem, but drinking alcohol while taking these medications can cause severe intoxication as well as a host of other health problems.

It was widely reported last year that prescription sleeping drugs, like Ambien, were causing people to compulsively eat and drink alcohol in their sleep and, sometimes, get into their cars and begin driving. These people were often found in wrecked vehicles with no knowledge as to how they got there and no memory of ever driving.

So, pharmaceuticals and alcohol are proving to be a big problem. People who are on these types of medication owe it to themselves, and everyone on the road, to take a good hard look at whether their alcohol consumption has changed since they began using a certain medication. Alcohol and these drugs are a dangerous combination, so please be careful.

Monday, March 19, 2007
St. Patrick's Checklanes

On St. Pat's in Kansas City, you can count on a great parade, packed bars in Westport and elsewhere, and a massive DUI checklane set up at about 39th and Southwest Trafficway to snarl traffic in midtown. This year, the checklane ran from 9 p.m. to 4 a.m. (7 hours). 1,439 cars were stopped. There were 37 DUI arrests (plus they found an illegal alien). That is a rate of 2.57%. The Independence police also ran a checklane and after stopping 615 cars, got 5 DUI's. That is less than 1%. Combined, the checklanes stopped 2,012 people were NOT intoxicated. Given how easy it is to find intoxicated persons on St. Patrick's Day in Kansas City, these numbers seem abysmal. Then again, maybe the problem is not as bad as they tell us it is. One young driver in Independence tried to flee the checklane, resulting in her crashing into another vehicle and seriously injuring the other driver. There was a similar incident in midtown last year in which the fleeing driver crashed and killed his passenger. So, maybe the checklanes are causing more problems than they are solving? The murder rate in Kansas City is out of control. There are a host of other social problems plaguing the city. Is this the most effective use of law enforcement? These kind of questions about checklanes are nothing new on this blog. Until the money stops flowing in from special interest groups, I suspect we will continue to see the flashing lights and orange cones hidden behind bends in the road and at the bottom of hills and a large concentration of law enforcement resources waiting there to stop the 98% of us who are driving legally.

Thursday, January 25, 2007
Failure to Maintain a Single Lane

A new case in Kansas, State v. Ross, addresses a situation seen very frequently in Kansas DUI cases. Generally, all a police officer needs is a simple traffic infraction in order to pull a driver over. Late at night, officers will look for any little violation that they can find to justify a stop so that they can also smell the driver and see if they can get a DUI. I see a lot of people who were stopped for things they would never get pulled over for during the day, like not having a light above their license plate, not using a turn signal and, very often, "Failure to Maintain a Single Lane".

There really is no such thing as "Failure to Maintain a Single Lane". The statute, KSA 8-1522, is actually called "Driving on Roadways Laned for Traffic". Anyway, it is often cited as FTMSL. An officer will pull a driver over (especially anytime after midnight) if the driver's tires cross a lane divider or the edge line. Police officers would sometimes pull their cruisers right up onto the tail of a driver they wanted to stop an tailgate them, even swerving back and forth a little. This induces what is known as "Black and White Fever", wherein the driver, nervous becuase there is a police officer right on his or her tail, spends more time looking in the rearview mirror at what is going on than looking at the road before him or her. Naturally, they will leave their lane briefly during this time. Often at trial, I can establish that the driver's tire crossed the line only by an inch or two, or even a tire width, and only for a second. However, this was previously considered FTMSL, and was all that was necessary for a stop.

The Ross case says that the statute does not require that a driver never leave his or her lane. The law only requires that a driver maintain his or her lane as "nearly as practicable" and only leave the lane if it can be done safely. I have argued this exact point numerous times before, including to the same Court of Appeals that handed down the Ross case, but to little avail. Fortunately, they have now recognized the plain language of the law, and the common sense reality that it is not necessary that a vehicle rigidly stay in the lane, as long as any brief movement out of the lane is not unsafe. As the Court recognizes, cars do not run on rails.

I would be willing to bet that, all of a sudden, there will not be any more car stops for FTMSL in Kansas DUI cases and we will see an upsurge in other justifications for making a stop. These stops were almost always a pretext for a Kansas DUI investigation anyway and sometimes were brought on by the deliberate tailgating of the officer. Thanks to this new case, they'll have to come up with something else now in order to justify pulling someone over.

Saturday, January 13, 2007
Hypocrisy

This article from Maryland is about a state legislator who was pulled over for a traffic infraction, smelled like alcohol and took a preliminary breath test that registered a .140, nearly twice the legal limit. After he flashed his legislative ID, the officer decided not to make an arrest and arranged a ride home for him. More interesting is that MADD is completely supporting the decision not to arrest. Of course, MADD is the organization that is normally pushing stricter law enforecement and lower legal limits all over the country. So, what gives?

The reason that the officer let the legislator go and that MADD is covering for the cop and the legislator is MONEY. The police and MADD both depend of legislators to earmark funds for them. So, when a legislator turns up drunk behind the wheel, he gets a ride home. Believe me, if anyone else reeked of alcohol and blew over the legal limit on a PBT they would be getting a ride to jail with handcuffs. Of course, the police and MADD also depend on the citizens they arrest for DUI for money, and they get a lot of it everytime someone is diverted or convicted of DUI. That is why the police always arrest anyone they suspect of drinking and driving. In fact, I have represented many people who blew UNDER the legal limit. They still got arrested and charged with a DUI. The Maryland story is one of the few times that the hypocrisy of MADD gets the light of day shone on it.

Monday, December 11, 2006
You Can Drive a Moped if You are Suspended

As of a few years ago, the suspension periods in the State of Kansas got a lot longer, especially for people who invoke their right to refuse to take a breath test. Since most places in Kansas (and Missouri, for that matter) don't have taxicabs, much less buses or subways, this makes it nearly impossible to get around legally while suspended. I frequently get asked what a person is supposed to do if he or she gets suspended for a long period of time. Drivers ask, "How does the State expect me to get to work" during a one, two or three year suspension. Well, the short answer is that they don't care. If you lose your job and have to go live under a bridge, that won't be their problem.

But there is one alternative. In the State of Kansas, a person who is suspended for a DUI can usually get a Class C driver's license which will permit them to operate a "motorized bicycle", also known as a moped or scooter. This is authorized by a statute, KSA 8-235. This may not be a very attractive option for many people, however, it may beat walking. A motorized bicycle is defined as a device with 2 or 3 wheels which has a motor which produces not more that 3.5 brake horsepower, has a cylinder capacity of 130 cc or less, and is capable of a maimum design speed of not more than 30 miles per hour. KSA 8-126. This license is available to those who have been suspended for a conviction or administrative suspension for DUI. It is not available to persons revoked as a habitual violator.

I had a client who was a motorcyle mechanic. He had lost his license to drive before he ever came to me. So, even though I ultimately got a "not guilty" verdict for him at trial, he had lost his license for one year. He took a moped frame and built a vehicle at looked almost exactly like a slightly smaller version of a Harley Davidson. It was pretty cool actually. He got the Class C license. He was stopped by a police officer for some reason who verified that the motor was the correct size and that my client was properly licensed. No problem.

So, there is this alternative to not driving a car or breaking the law by driving while suspended. At least you can get to and from the grocery store, even if you have to keep your helmet on in the store so no one recognizes you.

Wednesday, November 29, 2006
Erker, Norton & Hare Named SuperLawyers again

Well, I guess if we have to toot our own horn, this blog is the place to do it. Tom Erker and I (Jay Norton) were selected by attorneys from our area as SuperLawyers for 2006. Our firm is featured in the November issue of Kansas City Magazine which has a special supplement on the SuperLawyers of Kansas and Missouri. Our firm was also featured in SuperLawyers of Kansas/Missouri in 2005. We don't actually have superhero abilities, we just work really hard and care about our clients. However, it is nice to be recognized.

Tom Erker was also recently named as one of The Best Lawyers in America* for 2007. So, we are happy to congratulate him for that honor, as well.

* We are supposed to let you know that The Best Lawyers in America is a registered trademark.

Sunday, November 26, 2006
Recent News and Sci-Fi DUI

I haven't posted for quite awhile. This has probably been our law firm's busiest year ever. So, that leaves little time for things like blogging. Plenty has been happening in our law firm and in the DUI news world. Our law firm was chosen as and featured by SuperLawyers for 2006 and appeared on the inside cover of the SuperLawyers publication and their insert in Kansas City Magazine's November addition. We were also named as SuperLawyers last year. Tom Erker was recently named as one of the Best Lawyers in America. We have been winning cases and obtaining dismissals for our clients. The most important thing is that our clients are continuing to choose us for their legal needs and they are continuing to send their friends and family to see us.

There has been a lotof news lately about MADD's press release that they are recommending ignition interlock devices for every single person who gets a DUI. They are also championing new technology that claims it can sense the alcohol level in a person's blood by infrared technology that permeates the skin. MADD has previously suggested that all cars be required to be manufactured with this kind of technology, and that it be mandatory on all cars, regardless of who the driver is. While technology is likely to change the DUI landscape in the future (remember the Intoxilyzer 5000's in Kansas are from 1984 or so), we are a long way from any of it being perfect. Ignition interock devices are designed to shut cars down or prevent them from being started when there is any alcohol detected (usually .04 or less). So, they are designed to not just stop drunk driving, i.e. illegal driving, but also to prevent the legal, responsible and safe drinking and driving. The ignition interlock devices have had all kinds of problems, as well. They have prevented cars from starting when there was no alcohol present, and they have failed to detect alcohol when it was present. This happens on a regular basis. Think about how many items on your car don't work properly from time to time - power windows, CD players, gauges, door locks, etc. Ignition interlock devices need a lot of maintenance and calibrating.

The infra-red technology is unproven and a long way from being rolled out in any serious way. The idea is that steering wheels or arm rests would have the technology and would sense if the driver is under the influence just by the touch of the skin. The company also claims that police officers will have a mobile device that can quickly give them an accurate reading on the side of the road, so that all motorists can be checked at all traffic stops. Of course, the company won't release any details regarding the device and they are not in use anywhere, so it may just be science fiction.

The bottom line is that DUI is a personal responsibility issue. No amount of technology will be able to completely prevent it. It is entirely unreasonable to require everyone else to be required to pay for and maintain these devices in cars, or to be subject to these infra-red searches just to catch the few. Once again, common sense is being sacrificed at the altar of DUI. Don't be surprised when you next buy a car and see some extras on the sticker that aren't options.

Tuesday, Septemeber 19, 2006
Constitution Does Not Apply to License Hearing

A recent decision by the Kansas Court of Appeals, not final yet, holds that the it is irrelevant whether the police had any reason to stop you when it comes to the hearing about your driver's license. The case can be found at
http://www.kscourts.org/kscases/ctapp/2006/20060915/94033.htm

When a driver is accused of failing a breath or blood test, or refusing one, there are 2 different cases that are initiated. One is the criminal case, in which the person is charged with a DUI, the second is a case against the driver's license.

Normally, the Fourth Amendment to the US Constitution mandates that all US citizens have the right to be free from unreasonable seizures and searches. When a car is stopped the driver is seized. So, police have to have reasonable suspicion that a crime has occurred or is occurring before they can stop you. That is the American way. Or, it was. Now there is another DUI exception to the Constitution. According to this new case, the police do not need to have had a reason to stop your car. They can stop you just for the fun of it, or because you are Black, or a Muslim, or a teenager, or a woman, or for any other reason that they like and it does not make a difference. You cannot raise the fact that you did not commit any traffic offense that would warrant a stop of your car. Whether your seizure was lawful and Constitutional is no longer relevant.

In my opinion it is a sad day when a court of law decrees that the United States Constitution is not relevant to a judicial proceeding. This is another fundamental right that has been sacrificed upon the altar of DUI. Perhaps the Kansas Supreme Court will reverse this, but I doubt it. My hope is that one day the people of Kansas, and the USA, will say "enough" to the continued erosion of the freedoms that our country fought so hard to establish and maintain. Until then it appears that the Constitution will continue to get thrown out with the DUI bathwater.

Thursday, August 31, 2006
GHB, Date Rape and DUI

A friend sent me the following article about a young lady that went out and had one drink. A few hours later she was charged with manslaughter for killing another person with her vehicle. She received a sentence of 40 years in prison. The article is at: http://www.salon.com/mwt/feature/2006/08/30/criminal/index.html

This is a frightening story. One of the reasons I find it so shocking is that I have had handful clients in the past few years come to me charged with DUI when they swear they only had one or two drinks, then completely blacked out and woke up in their car somewhere else, sometimes after being involved in an accident. This is not just something that happens to other people. There are frequent instances of dosings with the date rape drugs of GHB and Rohypnol in Kansas City bars and clubs. This is also not just something that happens to women. Two of these clients were men and the aim of the perpetrator was apparently just to make someone else sick for the "fun of it".

These victims had a drink or two and started to feel sick. A couple of them remember leaving because they didn't feel well. Then, the symptoms fully hit them as they were driving and they pulled over or wrecked. The others don't remember leaving or how they got to where they were found.

Of course, when the police show up the person appears very intoxicated. Unfortunately, in all of these situations the clients either refused a breath test or were too incoherent to consent to a test. I firmly believe that a breath test would have shown there to be little to no alcohol in the system. GHB can only be found in the blood for a few hours. There is a hair follicle test that can be done, but it has to be done within a month.

Without confirmation that there was something on board other than alcohol, the person is on the hook for a DUI. In fact, the law in Kansas is not exactly clear whether it is still illegal to be driving a car when a drug was involuntarily or unknowingly administered. DUI is an "absolute liability" offense and no intent to drive while under the influence of alcohol or a drug need be shown by the prosecutor. I still believe that a court would not convict a person for a Kansas DUI if a date rape drug was unknowingly ingested, but I would not want to bet on it.

The bottom line is that every person who goes to bars, clubs, parties, or other place where liquid refreshments are served runs the risk that his or her drink will get drugged. It is a very bad situation if that happens. Watch your drink being made, don't accept drinks from strangers, never let your drink out of your sight or turn your back to a drink. These odorless, colorless date rape drugs can be slipped in easily and quickly. You must responsible for what goes in your body and in what quantities. Unfortunately, the world is full of bad people who count on the trust of others. You could end up with a DUI or worse.

Monday, August 7, 2006
Cost to Benefit Ratio Part II
See Part I

A Missouri DUI Checkpoint in North Kansas City this past weekend netted a total of 2 DUI arrests out of 1,228 vehicles stopped. That is 1 out of every 614 drivers. Here is a link to the story: